As infection figures in Germany continue to decline, office buildings have begun to fill up again. Employees are returning to their desks.
This without doubt positive fact does, however, often lead to labour law issues which companies have to address. In the following, we have compiled some frequently found labour law issues in conjunction with the ‘ramp-up’ of the economy.
‘Bringing back’ employees from their workplaces at home?
In order to assess whether an employer can bring their employees back to the company first and foremost requires taking a look at the rules for working from home that were introduced when this form of work was introduced. If agreements were made with the works council or with the employees at the time working from home was introduced, these agreements apply. Unless explicit rules exist for working from home, the following applies:
As soon as the pandemic-related protective measures are no longer necessary, the employer can generally and unilaterally order employees to work at the company. The employee is not entitled to continue working from home.
This right neither results from company custom nor from any concretisation of the employer’s right to issue instructions. When working from home was ordered,it was obvious to the employees that this was a temporary measure, i.e. for as long as the safety precautions required. It is therefore not possible to assume that the employer’s intention was to allow working from home on a permanent basis beyond the end of the crisis.
Note: However, the employer’s orders to return to the company office must comply with generally applicable labour law, in particular, the general principle of equal treatment under labour law. For example, it can be problematic to bring individual employees or groups of employees back to the company while others continue working from home, or to impose different rules for different groups of employees, for example, with regard to attendance times.
Furthermore, the co-determination rights of the works council must be observed when employees are ordered to return to their workplaces at the company (see also below).
Occupational health and safety
Employers are obliged by law to assume responsibility for protecting their employees from Covid‑19 infection (section 618 (1) of the German Civil Code (BGB, Bürgerliches Gesetzbuch), sections 3 to 5 of the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work (ArbSchG, Arbeitsschutzgesetz)). If increasing numbers of employees are now present at the company, the company’s occupational health and safety standard must continue to be observed and the company’s hygiene concepts must be adapted accordingly.
During the course of the ‘corona crisis’, the Federal Ministry of Labour and Social Affairs (BMAS), in cooperation with employers’ and employees’ associations and the occupational safety and health administrations of the federal states, drafted occupational safety and health standards for dealing with the corona crisis (SARS-CoV2 occupational safety and health standard of 16 April 2020).
The risk of infection at the company is part of the employer’s risk assessment for the prevention of pandemics at the company. Every company is obliged to implement a hygiene concept within this framework. This requirement is met by adherence to the company’s infection protection measures described in the SARS-CoV-2 occupational health and safety standard and the sector-specific concretisations based on it.
For companies, the sector-specific concretisations of the SARS-CoV-2 occupational health and safety standard, which were drawn up by the statutory accident insurance institutions (employers’ liability insurance associations), are particularly helpful in implementing the necessary measures. Company doctors and occupational safety specialists should also be involved.
Please also read our blog post: SARS-CoV-2 Occupational Health and Safety Standard: Guidelines for practical application
Co-determination rights of the works council when short-time work expires
The works council’s co-determination right must be observed in the measures to end short-time work. In this regard, Hamm Labour Court issued a recent decision according to which a co-determination right of the works council had to be observed when reopening a retail business, which as a result prevented the quick reopening of the business (Hamm Labour Court, decision of 4 May 2020 – case: 2 BVGa 2/20).
The employer operated a retail business in a shopping centre. The applicant was the elected three-member works council. On 9 April 2020, the parties concluded a company agreement on the introduction of short-time work, which is valid until 31 May 2020. The business was then closed. On 22 April 2020, the works council was informed that the branch in I was to be reopened on 28 April 2020. Employees were to return to work for between 20% and 80% of their individual working hours beginning 28 April 2020. The works council objected to this and requested that the measures be prohibited by way of temporary injunction and was partially successful in this effort.
Hamm Labour Court held that the following had to be taken into account: The parties had concluded a company agreement on short-time work for a term until 31 May 2020. In this agreement, the parties originally agreed that the employer’s working hours would not be ‘called up’. The calling up of working hours therefore required the works council’s express consent which had not been issued by the time the judgment was delivered. The employer was therefore prohibited from acting in violation of the company agreement.
Note: When concluding the agreement, it must therefore be ensured that it can be terminated unilaterally by the employer if the crisis situation eases.
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